Court to hear arguments in warrantless wiretapping cases

Ninth Circuit appellate court will decide if lawsuits filed by EFF against AT&T, NSA can proceed

The Court of Appeals for the Ninth Circuit will begin hearing arguments on Wednesday on two related lawsuits involving the constitutionality and the legality of warrantless wiretaps of phone and email conversations of U.S. citizens by the government.

Both the lawsuits were filed by the Electronic Frontier Foundation (EFF). One of them ( Hepting vs. AT&T ) was filed in 2006 and accuses AT&T of violating privacy law by illegally collaborating with the U.S. National Security Agency (NSA) to wire-tap and mine the phone and email conversations of millions of ordinary U.S. citizens.

The other lawsuit ( Jewel vs. NSA ) was filed in 2008 on behalf of AT&T customers and seeks to stop the NSA's "dragnet" surveillance practices, and to have them declared by the courts as an illegal and unconstitutional activity.

The government has argued that it is within its rights to conduct such surveillance activity in the interests of national security. It has maintained that the NSA and the telecommunications companies that gave it the data it sought should be granted immunity from prosecution. A failure to give them such protection could result in the disclosure of critical state secrets, the government has contended.

The appellate court will decide whether to dismiss the cases or let them proceed.

Cindy Cohn, legal director for the EFF, said the implications of the two cases are far-reaching. "This is one of the only chances we have to bring the rule of law to government surveillance of Americans," Cohn said. "The government has argued that the whole thing is a state secret because of national security [implications]."

The first EFF lawsuit stemmed from media reports in late 2005 and 2006 showing that then President Bush had authorized the NSA to intercept phone and Internet communications of U.S. citizens without the need for any judicial review.

The surveillance was initiated in the aftermath of the terrorist attacks of Sept. 11, 2001. It resulted in vast amounts of phone call and email records of millions of Americans being secretly intercepted and mined for the purposes of identifying and tracking potential terrorists.

Several of the largest telecommunications companies in the country were later revealed to have opened up their customer communications databases to the NSA.

EFF's lawsuit against AT&T was one of more than two dozen filed against telecommunications companies in the aftermath of those disclosures. EFF's complaint included testimony from Mark Klein , a retired AT&T telecommunications engineer turned whistleblower who described (PDF document) how AT&T had routed Internet traffic to a secret NSA-controlled room in Folsom Street, San Francisco from where it was monitored.

In 2009, a federal judge dismissed EFF's lawsuit against AT&T along with the other cases, citing the FISA Amendments Act signed into law by President Bush in 2008. The controversial law basically gave the telecommunications company's retroactive immunity for their participation in the warrantless wiretapping activities. The Obama Administration too has defended Bush's stance and has argued that the lawsuits should not be allowed to proceed because it could result in the exposure of state secrets.

In response, the EFF filed another lawsuit, this time directly against the government, challenging the constitutionality of its activities. That lawsuit too was later dismissed by a federal court in San Francisco, which noted that because millions of Americans had been spied on, no single American had standing to sue, Cohn said.

On Wednesday the EFF will argue against the applicability of FISA in the AT&T case as well as the district court's ruling in the case against the government, Cohn said.

What FISA does is to give the president the authority to grant immunity to entities that cooperate with the government in certain circumstances, Cohn said. That is very different from saying the law grants retroactive immunity to companies that cooperated with the government in the warrantless wiretapping, she said.